| Matter of Harrison v Votraw |
| 2008 NY Slip Op 08387 [56 AD3d 868] |
| November 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Tony Harrison, Petitioner, v Tim Votraw, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with forcing another inmate to engage in asexual act, making threats, engaging in physical contact with another inmate and engaging inviolent conduct. Following a tier III disciplinary hearing, he was found guilty of the charges andthe determination was affirmed on administrative appeal. This CPLR article 78 proceedingensued.
We confirm. The misbehavior report, together with the testimony of the correction sergeantwho prepared it and that of the inmate who was victimized, as well as the confidentialinformation considered by the Hearing Officer in camera, provide substantial evidencesupporting the determination of guilt (see Matter of Santiago v Goord, 11 AD3d 845, 846 [2004], lvdenied 4 NY3d 704 [2005]; Matter of Garrett v Selsky, 228 AD2d 758 [1996]).Contrary to petitioner's claim, the record discloses that the hearing was commenced andcompleted in a timely manner insofar as appropriate extensions were obtained by the HearingOfficer (see Matter of Davis vGoord, 34 AD3d 1027, 1028 [2006]; Matter of Berry v Goord, 13 AD3d 947[*2] [2004]; see also 7 NYCRR 251-5.1 [a], [b]). Likewise,there is no merit to petitioner's claim that he was denied adequate employee assistance inasmuchas the assistant could not produce documents that did not exist (see Matter of Roye v Goord, 34 AD3d1134 [2006]; Matter of Hynes vGoord, 30 AD3d 652, 653 [2006]). In sum, we find no reason to disturb thedetermination of guilt.
Peters, J.P., Spain, Carpinello, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.